England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice
		25th January 2008

JUDGE HODGE QC:

1. This is my extemporary judgment in the matter of Hiscox Syndicates Ltd. and another v. The Pinnacle Ltd. and others, claim number HC07C03309.
2. By a claim form issued on 5th December 2007, the claimants, Hiscox Syndicates Ltd. and Hiscox plc, seek injunctive relief on the grounds of nuisance against the four defendants, The Pinnacle Ltd., The Pinnacle No. 1 Ltd. (both companies incorporated in Anguila), Keltbray Ltd., and Arab Investments Ltd. (both companies incorporated in England and Wales).
3. The claimants (to which I can refer as "Hiscox") are the lessees and/or occupiers of office premises at 1 Great St. Helens, London EC3. These proceedings arise out of works at an adjacent building site which comprises premises previously known as 38 Bishopsgate, 22-24 Bishopsgate, Crosby Court and 4 Crosby Square.
4. The 1st defendant is the freehold owner of the site, whilst the 2nd defendant is the lessee of the site. The 3rd defendant, Keltbray, against which Hiscox do not seek any interim injunction, is the contractor engaged by Pinnacle to carry out the demolition works on the site. The 4th defendant is employed as managing agent by Pinnacle. The claimants assert that it is also the beneficial owner of the site. The 4th defendant does not accept that it is properly a party to this application, but since the respondents, the 1st, 2nd and 4th defendants, will of course abide by any order the court may make, the point is perceived to be an academic one.
5. On 11th December 2007 the claimants issued an application notice seeking interim injunctive relief against the 1st, 2nd and 4th defendants. Effectively, the claimants seek interim injunctive relief to restrain those defendants from carrying out the demolition of buildings on the site in a way that is said to cause a serious nuisance to Hiscox in their occupation of 1 Great St. Helens. The injunction sought requires the respondents to control how and when particular works of demolition are carried out, but it is said that they will not prevent the demolition from proceeding. There are three matters complained of: the first is said to be excessive vibration; the second is obstruction of access to 1 Great St. Helens; and the third is water damage.
6. On this application, Mr. Timothy Fancourt QC appears for the claimants, instructed by Allen & Overy; and Mr. Paul Darling QC, leading Mr. Piers Stansfield of counsel, instructed by Davies Arnold Cooper, appear for the respondents.
7. The injunctive relief sought requires the respondents, first, to avoid causing vibration to 1 Great St. Helens between the hours of 8.30 in the morning and 6.00 in the evening on weekdays in excess of previously agreed levels as measured by apparatus located within the Hiscox premises; secondly, to remove obstructions and to cease to prevent reasonable access to the Hiscox premises; and, thirdly, to stop causing water ingress to the wall of the Hiscox premises situated nearest to the site at 38 Bishopsgate. The demolition works are scheduled to continue until at least October 2008, with those on the north building at 38 Bishopsgate, immediately neighbouring 1 Great St. Helens, being scheduled to continue until at least May 2008.
8. Both counsel have prepared written skeleton arguments. That of Mr. Fancourt is dated 16th January 2008 and that of Mr. Darling and Mr. Stansfield is dated 18th January 2008.
9. In relation to vibration, Hiscox effectively seek an order that the respondents do not carry out works on their land so as to cause vibration above certain levels - which vary at different times of the business day - as measured by apparatus that has been installed on Hiscox's premises. The respondents contend that Hiscox's interests are already fully and satisfactorily protected by an agreement that was entered into between the claimants and the 2nd defendant on 26th November 2007. In fact, that agreement had been negotiated earlier; and it was effectively observed from about 8th or 9th November 2007. The agreement, which is to be found in Bundle 3 at Divider C6, pp. 135-145, was in terms due to expire at 6.00 p.m. on 30th November 2007. However, the 2nd defendant has indicated its willingness to continue to observe the provisions of that agreement.
10. As I say, it is part of the respondents' contention that Hiscox's interests are fully and satisfactorily protected by that agreement; but they also assert that since the level of vibration cannot be known at the time works of demolition are carried out on the development site, the approach proposed by the claimants is impractical. The respondents submit that the better approach -which the respondents say they have adopted - is for the best practical means of carrying out the works to be agreed with the relevant local authority, the City of London Corporation, and recorded in method statements, following discussions with Hiscox's representatives. It is also asserted that the practical difficulties, if the injunction were to be granted as sought, would be increased by what is said to be Hiscox's adversarial approach. For example, it is said that, although access to Hiscox's offices would assist in ascertaining the effect of different methods of demolition, Hiscox has refused, and continues to refuse, to give the person in charge of the contractors' operations on site, Mr. Long, access to its premises under any circumstances. In this regard, reference is made to para.68 of the 2nd witness statement of Charles Viscount Dupplin. That paragraph, however, makes it clear that Hiscox is prepared to afford reasonable access to other of the respondents' representatives, in particular, to Mr. Wilkins. Mr. Wilkins is one of the project managers for the site, employed by Mace Ltd., who are the project managers. Mr. Wilkins is, in fact, the person identified in para. 13 of the agreement of 28th November as the point of contact for all matters under the agreement, other than repair works. Clause 9 of the standstill agreement also provides that Hiscox and the 2nd defendant will instruct, in the case of the 2nd defendant, another individual, Mr. Colin Waters of Arab, to carry out experimentation and analysis to determine specific locations of operations or operation types to identify those which are creating the most vibration within 1 Great St. Helens. Therefore Hiscox's refusal to allow Mr. Long access to its premises is not an obstacle to the implementation of a working arrangement between the parties.
11. In relation to the question of access to Great St. Helens, the respondents accept that Hiscox are entitled to the access sought; but they contend that an injunction is wholly unnecessary to ensure that such access is provided. In relation to the ingress of water, this is accepted to be necessary to cool and lubricate the diamond cutting machinery, whilst it cuts the wall immediately adjacent to the Hiscox premises, if the best practical means of demolition are to be used. It is accepted that there may in the past, and on an isolated occasion or occasions, have been some limited escape of water; but the respondents say that they have used, and will continue to use, all practical methods to prevent water from spraying onto or flowing into 1 Great St. Helens, but that the injunction sought is unreasonable and unnecessary.
12. The interim injunction application first came before the Chancellor, Sir Andrew Morritt, on Wednesday, 19th December 2007. The Chancellor granted interim injunctive relief in relation to the access issue, but he did not grant relief on the vibration and water damage issues. His extemporary judgment is to be found at Bundle 1, Divider 5 beginning at p.20. In relation to the alleged vibration nuisance, the Chancellor held that the grant or refusal of an injunction until 21st January 2008, which it had been agreed should be the return date of the interim injunction hearing, was a matter turning on the balance of convenience since, as he held, there was plainly an arguable case for injunctive relief but neither side would, as he also held, be adequately compensated after trial by an award of monetary compensation. On balance the Chancellor declined to grant an injunction. His reasons are set out at paras.24-30 of his judgment. He was influenced by, firstly, the expectation that the respondents would take care, effectively to "keep their noses clean", until the hearing of the application by order; secondly, the respondents' submission that negotiations had taken place with the City of London, in connection with the City's Control of Pollution Act and Building Act jurisdiction, to revise method statements and that this had been done on 5th and/or 6th December resulting in there being no more excesses of vibration experienced by 19th December; and, thirdly, the respondents' evidence, in particular that of Mr. Waters' 1st witness statement, that the monitoring equipment set up jointly by the parties' acoustic consultants was not adequate to measure excesses over the agreed vibration limits for the purposes of compliance with an injunction.
13. Mr. Fancourt points out that, in fact, method statements had not been revised in early December resulting in there being no further nuisance. Rather, he submits that no agreement had been reached, and no revised method statement issued, and no change in practice implemented with effect from 6th December. He makes the point that the respondents had not made it clear in their evidence that heavy demolition work on the north building had been suspended, and that this was the reason why there had been no more excesses of the vibration limits rather than the fact that new methods were being agreed and implemented. He submits that, in fact, little progress had been made either before or after 19th December in seeking to agree new method statements, and that heavy demolition work on the north building has not yet resumed. There may be an issue of fact between the parties as to whether that is in fact the case. Certainly no heavy demolition work had been carried out between 5th and 19th December, but I understand that the respondents may say that such work has resumed more recently, within the last week or so.
14. Mr. Fancourt also submits that the respondents' evidence as to the inadequacy for injunctive purposes of the monitoring equipment was inaccurate and misleading. The relevant evidence had been served late in the afternoon of the day preceding the hearing and some in the middle of the hearing itself, and the claimants had therefore had no opportunity to consider and respond to it. He submits that had the Chancellor had the benefit of seeing a later, second witness statement from Mr. Trevor Jones, one of the claimants' witnesses and an acoustics expert, criticising the evidence of Mr. Waters for the respondents, he would not have been persuaded to withhold the grant of an injunction on this basis.
15. In relation to the water ingress nuisance, the Chancellor declined to grant interim injunctive relief until the hearing on 21st January on the basis that, as of 19th December, there had been no recurrence of the problems which had been experienced in this regard in late November. That, the respondents claimed, was the result of a change in its working methods; but Mr. Fancourt answers this by saying that, as later transpired, no heavy demolition work had been done on the relevant part of the building since 5th December.
16. In relation to the access nuisance, the Chancellor granted injunctive relief. Mr. Fancourt submits, on the basis of para.23 of the judgment, that he concluded, in Mr. Fancourt's submission rightly, that the respondents had no arguable defence to this part of the claim and that the claimants were entitled to unhindered access to 1 Great St. Helens.
17. The injunction as to access granted by the Chancellor was in terms expressed to last until after final judgment in the claim or further order in the meantime. On its face, therefore, it might be thought that the injunction was not limited in point of time until the return date on 21st January. However, it seems to me clear, from the terms of para. 19 of the Chancellor's judgment, that what was contemplated was that all matters relating to interim relief should come back before the court at the effective hearing of the interim injunction application as an application by order, and that the interim relief that he was granting should extend only for the period of about four weeks that was to elapse between 19th December and that adjourned hearing date.
18. Since 19th December, the claimants have served evidence in reply to that of the respondents, in accordance with the terms of the Chancellor's order that had required service of evidence in reply to the defendants' evidence by 5.30p.m. on Friday, 11th January. The order went on to provide by para. 5 that any evidence in response from the defendants "in relation to new issues raised in the claimants' evidence in reply" was to be filed and served by 5.30p.m. on Tuesday, 15th January 2008. The respondents did serve further evidence on 15th January, but in his skeleton argument Mr. Fancourt complained that this had been substantially in breach of the Chancellor's direction that only evidence addressing new issues raised in the claimants' evidence in reply was to be permitted. This had been something that had been specifically discussed in the course of the observations between the Chancellor and counsel after the Chancellor had delivered his extemporary judgment. The Chancellor is recorded at p.43 as having asked Mr. Darling (who appeared on the interim application for the respondents) whether he thought that the respondents would be going to be putting in a response because he, the Chancellor, thought the rules ought to be applied more strictly than they were. Having received an affirmative answer, the Chancellor pointed out that the respondents could not just start up all over again and Mr. Darling had accepted that. The Chancellor stressed that all the respondents could deal with was a new matter which they could not reasonably have anticipated. Mr. Darling then made the point that that was certainly right, although he added the qualification that the respondents had had to deal with the first round in four working days so that it was a question of balancing. Mr. Fancourt (who appeared then for the claimants as he does now) intervened to point out that the defendants had had a team often solicitors and two counsel working on the case, judging by their statement of costs, and if they really could not deal with the evidence within a week. The Chancellor then cut him short and gave directions as to the evidence, but made it clear that he was not prepared to allow people to start having a battle of affidavits - I think he intended to refer to witness statements - in the latter part of the week beginning 14th January for an application that was to come on the following Monday.
19. Mr. Fancourt, in his written skeleton submissions, asserted that the respondents had entirely disregarded the terms of that order and had taken the opportunity to reply generally, improving on their previous evidence, rearguing points already debated in the evidence, and even including new expert opinion evidence on issues not previously covered at all. The parts of the respondents' evidence in rejoinder that were said to be inadmissible were identified in a letter from the claimants' solicitors, Allen & Overy, dated 16th January 2008.
20. At the hearing before me, however, on the morning of Thursday, 24th January -the third day of the hearing - Mr. Fancourt indicated that the claimants formally withdrew their objection to the evidence in rejoinder, but without derogating from the points that they had made in Mr. Fancourt's skeleton argument, which I have set out above. I should make it clear that Mr. Darling has firmly asserted that the defendants' position is that they have not breached, let alone - as Mr. Fancourt submits - have they flouted, the Chancellor's order.
21. In the result, therefore, the evidence now before the court is extensive. It runs to some twelve lever arch files. It consists, for the claimants, of the 1st witness statement of Charles Viscount Dupplin dated 11th December 2007. He is a member of the Executive Committee of the Hiscox Group. Secondly, it comprises the witness statement of Mrs. Georgina Roberts, dated 11th December 2007. She is a Human Resources Manager with Hiscox. Thirdly, it comprises the 1st witness statement of David Trevor-Jones, dated 11th December 2007, a consultant in acoustics, noise and vibration. Fourthly, it comprises the 1st witness statement of Richard Henry Jackson, dated 11th December 2007. He is a construction engineer. That was all evidence for the Claimants that was before the Chancellor at the hearing on 19th December. Before the Chancellor on that day for the respondents there were the following witness statements: First, that of Khalid Mohammed Affara, dated 18th December 2007. He is the director and company secretary of the 4th defendant, who are said to be the managing agents supervising and coordinating the development. Secondly, there was a witness statement from a solicitor and partner in the firm of Davies Arnold Cooper, the defendants' solicitors, Mr. John Francis Brammell, dated 18th December 2007. Thirdly, there was the witness statement of Oliver Thomas Long, dated 18th December 2007. He is a contracts manager employed by the 3rd defendant, the demolition contractors. Fourthly, there was the witness statement of one of the project managers for the site, Mr. Jeremy Wilkins, dated 18th December 2007. Fifthly, there was the witness statement of Colin Stephen Waters, dated 18th December 2007, a consultant in acoustics, noise and vibration. Sixthly, there was an expert report from Dr. Roberts, a civil and structural engineer and an expert in vibration. Finally, there was a second witness statement from Mr. Wilkins addressing the issue by the City of a notice under s.60 of the Control of Pollution Act 1974. That second witness statement of Mr. Wilkins was dated 19th December, the date of the hearing itself.
22. Since the hearing of 19th December, the claimants have served witness evidence in reply, in the form of a second witness statement of Charles Viscount Dupplin, dated 11th January 2008, as qualified by the terms of a letter dated 15th January 2008 from Allen & Overy to Davies Arnold Cooper. The claimants also served by way of reply second witness statements of Mr. Trevor-Jones and Mr. Jackson, both dated 11th January 2008.
23. In rejoinder, the defendants served a second witness statement from Mr. Waters, a second witness statement from Mr. Long, a third witness statement from Mr. Wilkins, a witness statement from Mr. Ian Scorgie, a liaison manager for the Pinnacle site employed by Mace, and a witness statement of Shane Martin Mulvaney, an assistant planning manager employed by Keltbray Ltd., the 3rd defendant. All those witness statements are dated 15th January 2008. There was also a second expert report from Dr. John Roberts, also dated 15th January 2008.
24. In the circumstances which were related in my first interim ruling - and, in the event, my only interim ruling - in this matter on 22nd January 2008, on the morning of 23rd January the defendants also served a witness statement from Stephen Blake, dated 23rd January. He is the principal Environmental Health Officer with the City of London. In response to that witness statement, the claimants served a third witness statement from David Trevor-Jones of 23rd January 2008. In response to that witness statement, without formally putting it in evidence, there was placed before me a copy of the Code of Practice issued by the London Borough of Tower Hamlets. Reference was made to s.6.3 relating to vibration standards. In particular, the defendants referred to the fact that contractors were to select and utilise methods of working and items of plant so that the maximum measured ground vibrations did not exceed a peak particle velocity of 1mm per second at any occupied residential property and 3mm per second at any other property in any orthogonal direction. Compliance with those limits was not to absolve the contractor from a duty of care and wider responsibilities under the contract. The relevance of that was said to be that, in para. 9 of his third witness statement, Mr. Trevor-Jones had referred to his involvement in the Docklands infrastructure and Canary Wharf works in Tower Hamlets, where he asserted that the vibration standard applied throughout was 1mm per second of peak particle velocity; and that he believed that a similar limit was adopted to protect people from annoyance as a working assumption for the other infrastructure works that he had mentioned, although he did go on to stress that he had been unable to check the precise figures. He asserted his belief that the 1mm per second standard had found widespread application. It was to answer that that the Tower Hamlets Code of Construction Practice was placed before me.
25. That then was the evidence before me. Mr. Fancourt addressed me for some five hours over the course of Tuesday, 22nd and Wednesday, 23rd January. Mr. Darling then addressed me for a similar period over the course of Wednesday, 23rd and Thursday, 24th January. Mr. Fancourt addressed me in reply for about an hour and 20 minutes on the afternoon of Thursday, 24th January. The oral submissions concluded at about 5 o'clock yesterday afternoon. I find it unnecessary, for the purposes of this judgment, to rehearse all the arguments that were addressed to me, but I should stress that I have borne them all in mind. I would have wished to reserve my judgment; but this case has already exceeded its time estimate and my sitting pattern does not permit this. As a result, this judgment is inevitably shorter than I would have wished.
26. Since a trial of this claim cannot take place before the demolition of the relevant north block at 38 Bishopsgate is scheduled to have been completed, in or about May of this year, it is common ground between the parties that I cannot apply a pure American Cyanamid approach of simply asking whether there is a serious question to be tried. I accept the submissions made by Mr. Darling that the merits must be examined; and that it is permissible to take into account the relevant strength of each party's case as it appears from the evidence. I accept also his submission that the consideration of balance of convenience may include an assessment of Hiscox's prospects of success at trial. The reason for that is that if an interim injunction would, in effect, dispose of the action, because the harm which would already have been caused to the losing party is complete, and of a kind which money cannot adequately compensate, the degree of likelihood that the claimants would have succeeded in establishing their right to an injunction if the action had gone to a trial is a factor which has to be brought into the balance by the judge in weighing the risks that injustice may result from his deciding the application one way or the other. That, I think, was common ground between the parties.
27. However, I have also to bear in mind that I cannot undertake a trial of this claim on paper. There has been no disclosure of documents; and nor has there been any cross-examination of witnesses. There are disputed issues of fact which I cannot resolve on the hearing of this application, and without the benefit of hearing evidence, both of fact and of expert opinion, evidence that has been refined and tested in cross-examination. I must, therefore, consider the balance of convenience: what would be the impact on the claimants if an injunction is refused as compared with the impact upon the defendants if the injunction is granted.
28. There was, happily, little dispute between the parties as to the applicable law. On the test for whether temporary building or demolition operations, which cause inconvenience to an adjoining landowner, rather than physical damage to his property, are capable of constituting a nuisance, I was effectively referred to four authorities. They were, in chronological order, the case of Harrison v Southwark & Vauxhall Water Company [1891] 2 Ch.409 , a decision of Mr. Justice Vaughan-Williams; Matania v National Provincial Bank Ltd. [1936] 2 All ER 633 , a decision of the Court of Appeal comprising Slesser and Romer LLJ and Finlay J.; Andreae v Selfridge & Co. Ltd. [1938] 1 Ch 1 , a decision of the Court of Appeal comprising Sir Wilfred Greene MR and Romer and Scott LLJ; and, finally, Clift v The Welsh Office [1999] 1 WLR 796, a decision of the Court of Appeal comprising Beldam and Ward LLJ and Sir Christopher Slade. On the basis of those authorities, I accept the statement of the law that is to be found at para. 10-041 of Keating on Construction Contracts, 8th edition, 2006. The paragraph is headed "Nuisance from building operations", and reads as follows:

"Building operations often substantially interfere with adjoining owners' enjoyment of their property because of noise, dust and perhaps vibration. Such matters in some circumstances might be held to be a nuisance and form grounds for an injunction prohibiting their continuance or an action for damages or both. If this were the result of ordinary building operations the business of life could not be carried on for old buildings could not be pulled down and new erected in their place. But the law takes a commonsense view of the matter and, if operations' such as demolition and building are reasonably carried on and all proper and reasonable steps are taken to ensure that no undue inconvenience is caused to neighbours, whether from noise, dust or other reasons, the neighbours must put up with it".

That is a citation from the judgment of Sir Wilfred Greene in the Andreae v Selfridge case.

29. There was an issue before me as to whether the necessary unreasonableness of the constructors' or demolishers' conduct is an ingredient of the adjoining landowners' cause of action in nuisance or operates by way of a defence to such a claim. A passage in the judgment of Mr. Justice Vaughan-Williams in the Harrison case, at p.414, suggests the former: that such unreasonableness is an ingredient of the adjoining landowners' cause of action. What Mr. Justice Vaughan-Williams said, at p.414, was that it seemed to him that the obligations of the defendant company in respect of the sinking of the shaft were neither greater nor less than those of a private person; and that a private person would not, in similar circumstances, be held to have created a legal nuisance by reason of the annoyance caused to his neighbours in the thumping for the purpose of sinking the shaft, unless it could be shown that he had neglected to take all reasonable precautions for mitigating the annoyance to his neighbours. That would appear to throw the burden onto the claimant. However, a passage in the judgment of Sir Wilfred Greene in the Andreae v Selfridge case, at p.9, suggests that the reasonableness and propriety of the constructors' conduct operates by way of defence to a claim in nuisance. I will read that passage in extenso because it relates also to another matter. At p.9 Sir Wilfred Greene, with whose judgment the other two members of the court, Romer and Scott LLJ, simply agreed, expressed his desire to make one or two general observations on this class of case.

"Those who say that their interference with the comfort of their neighbours is justified because their operations are normal and usual and conducted with proper care and skill, are under a specific duty if they wish to make good that defence to use that reasonable and proper care and skill. It is not a correct attitude to take to say, We will go on and do what we like until somebody complains'. That is not their duty to their neighbours. Their duty is to take proper precautions and to see that the nuisance is reduced to a minimum. It is no answer for them to say, But this would mean that we should have to do the work more slowly than we would like to do it or it would involve putting us to some extra expense'. All those questions are matters of commonsense and degree, and quite clearly it would be unreasonable to expect people to conduct their work so slowly or so expensively for the purpose of preventing a transient inconvenience that the cost or trouble would be prohibitive. It is all a question of fact and degree and must necessarily be so. In this case the defendant company's attitude seems to have been to go on until somebody complained and, further, that its desire to hurry its work and conduct it according to its own ideas and its own convenience was to prevail if there was a real conflict between it and the comfort of its neighbours. That, to my mind, is not carrying out the obligation of using reasonable care and skill".

30. In my judgment, the approach of Sir Wilfred Greene is the correct one. The reasonableness and propriety of the contractors' operations operates by way of a defence to a claim in the tort of nuisance rather than the absence of it being a necessary ingredient of the adjoining landowners' cause of action. In my judgment, a cause of action is constituted by causing undue inconvenience or discomfort to one's neighbour. The evidential burden of proof, once that has been demonstrated, then shifts to the alleged tortfeasor to adduce evidence to show that all reasonable and proper steps were taken to ensure that such nuisance would not occur. In my judgment, that is consistent with principle, since the existence or otherwise of reasonable and proper steps is essentially a matter peculiarly within the knowledge of the person conducting the construction or the demolition operations in question. If what would prima facie be a nuisance is established, in order to relieve himself from liability the alleged tortfeasor should take all proper and reasonable steps to avoid it.
31. In the course of his submissions, Mr. Darling explained that, in the peculiar area of law concerning building or demolition operations which cause inconvenience, rather than physical damage, to the property of a neighbouring occupier, the tort of nuisance is concerned with procedures rather than with outcomes. He referred in this context to para. 18 of the particulars of claim, which were served during the course of the hearing before me, in accordance with para.6 of the Chancellor's order, on 23rd January 2008. Paragraph 18 pleads that: "The defendants failed to take or cause to be taken all reasonable and proper steps to avoid causing the claimants harm by the noise and vibration produced by the demolition works and accordingly the high levels of noise and vibration suffered by the claimants as aforesaid are a nuisance foreseeably caused by the works". In a sense, Mr. Darling is right to say that the law regulates the way in which demolition or construction is to be carried out and the standard of work, but does not seek to prevent it from being done in the first place. But, in my judgment, if a neighbouring occupier suffers undue inconvenience or discomfort as a result of works of demolition or construction, it is for the person who undertakes those works to show that he has taken all proper and reasonable steps to avoid such inconvenience if he is to be relieved of liability in the tort of nuisance. I accept, on the authority of the Matania case, that the taking of proper and reasonable steps may, in an appropriate case, extend to causing works to be done at the least inconvenient time of day from the point of view of the adjoining occupier. I accept, on the authority of the Andreae case, that cost is also a relevant consideration; but, as Sir Wilfred Greene stressed, it is not a sufficient defence to say that the contractor would have had to carry out the work more slowly or would have been put to some extra expense in order to have avoided or minimised the discomfort or inconvenience to the adjoining occupier. As Sir Wilfred Greene said, it is all a question of fact and degree and must necessarily be so.
32. I was taken to the provisions of s.60 of the Control of Pollution Act 1974 to show that noise - which by the definitions section, s.73 (1) of the Act, includes vibration, and thus vibration - limits can be imposed by way of statutory control of building operations; and that where they are, non-compliance with such limits may constitute a criminal offence. Section 60 of the Control of Pollution Act 1974 applies to works of various descriptions, including works of construction and demolition. By s.60 (2), where the section does apply, and it appears to a local authority that works to which the section applies are being, or are going to be, carried out on any premises, the local authority may serve a notice imposing requirements as to the way in which the works are to be carried out; and may, if it thinks fit, publish notice of the requirements in such way as appears to the local authority to be appropriate. By s.60 (3) the notice may in particular (b) specify the hours during which the works may be carried out; and (c) specify the level of noise which may be emitted from the premises in question, or at any specified point on those premises, or which may be so emitted during the specified hours". By s.60 (8): "If a person on whom a notice is served under this section without reasonable excuse contravenes any requirement of the notice he shall be guilty of an offence against Part III of the Act." As I have said, by the definition section, s.73(l), "noise" expressly includes vibration; and thus vibration limits can be imposed during specified hours by way of statutory control of building operations.
33. I was taken by Mr. Fancourt to the case of Lloyds Bank plc v Guardian Assurance plc [1986] 35 BLR 34 , a decision of the Court of Appeal comprising Sir John Arnold, the President, and Nourse LJ. In particular, I was taken to the headnote, and to passages in the judgment of the President at pp.39-40, and at p.41, and to passages in the judgment of Nourse LJ on p.42. Mr. Fancourt cited that authority to show that statutory control under s.60 is capable of operating quite separately from the private law tort of nuisance. I accept that; although I also accept Mr. Darling's submission that statutory controls, and the role of the City, as the relevant local authority, are a relevant and important factor to be taken into account when determining both whether there has been a nuisance and, if so, whether that is sufficient to justify an injunction. But I also accept Mr. Fancourt's submission that the local authority acts in the public interest generally; and that its activities involve balancing the competing interests of the developer and all other persons potentially affected by the relevant building works, such as local residents, for whom the appropriate hours for carrying out noisy operations may be very different from those of the occupiers of neighbouring office buildings.
34. That is illustrated by the terms of an e-mail that was sent from Mr. Philip Thompson, the Environment Health Director of the City, to Charles Viscount Dupplin on 10th January 2008. That e-mail made it clear that, whilst the writer regretted that he and his staff had been disturbed as a result of breaches, it was not the role of the City to police the standstill agreement as it was an agreement between Hiscox and the developer to which the City was not a party. Nevertheless, the City remained willing to provide its good offices in helping to resolve disputes. The e-mail went on to express the writer's understanding that noise levels and times of working will not suit all cases, whether contractors undertaking work or businesses affected; and that the Code of Practice was intended to provide general guidance which had, over a period of many years, been found to provide an acceptable balance between the often conflicting interests of developers and their contractors and the nearby businesses and residents who are obliged to work and live in the vicinity of the numerous major developments that are taking place, and continue to do so, in the City. The e-mail went on to refer to the need for flexibility to allow for individual sites, circumstances and conditions. Only where agreement could not be reached would the City use its statutory powers to enforce what it, as the local authority, considered as fair and reasonable conditions limiting, for example, noise levels or times of noisy work. The writer concluded that, as a local authority, the City was obliged, when undertaking statutory action, to consider not only the interests of the individual parties concerned but also the broader public interest. Those interests might not necessarily coincide. The local authority must also act reasonably and could not use one piece of legislation, such as the Control of Pollution Act, to frustrate the intention of another, such as Planning Approval. That e-mail was exhibited to Mr. Blake's witness statement, upon which reliance was placed by the defendants.

I think that is probably a convenient point at which to break this judgment. I will resume at 10 past 2.

(Adjourned for a short while)
35. On the issue of the balance of convenience and the adequacy of damages, I was referred by Mr. Darling to Gee - Commercial Injunctions 5th edition at para.2-017.

"Sometimes damages are not an adequate remedy for the claimant because of the great difficulties which will be involved in assessing them. For example, the nature of the case may involve assessing imponderables about what hypothetically would have happened in a business over a period of years. Another factor which may make damages inadequate as a remedy is when to refuse an injunction would lead to the destruction of the claimant's business".

I was also referred by Mr. Darling to observations of Sachs LJ in the case of Evans Marshall & Co. Ltd. v Bertola SA [1973] 1 WLR 349 , a decision of the Court of Appeal comprising Sachs, Edmund Davies and Cairns LJJ. At p.379H Lord Justice Sachs considered the question whether damages were an adequate remedy. He said:

"The standard question in relation to the grant of an injunction, Are damages an adequate remedy?' might perhaps, in the light of the authorities of recent years, be re-written as, Is it just, in all the circumstances, that a plaintiff should be confined to his remedy in damages?'."

Later, at p.380C, Lord Justice Sachs said this:

"The courts have repeatedly recognised there can be claims under contracts in which, as here, it is unjust to confine a plaintiff to his damages for their breach. Great difficulty in estimating these damages is one factor that can be and has been taken into account. Another factor is the creation of certain areas of damage which cannot be taken into monetary account in a common law action for breach of contract. Loss of goodwill and trade reputation are examples. Generally, indeed, the grant of injunctions in contract cases stems from such factors".

36. Mr. Darling derived two propositions relevant to the adequacy of damages from those passages. The first is that the relevant question is whether it is just to confine either party to their remedy in damages. The second is that difficulty of assessing damages is a relevant factor in answering the former question. I accept both these propositions.
37. I was also referred, on the issue of the meaning of expressions such as "reasonable" and "best endeavours" in the context of "reasonable and best endeavours obligations", to the case of Rodea International Holdings Ltd. v Huntsman International [2007] EWHC 292 reported at [2007] 2 Lloyds' Reports 325, a decision of Mr. Julian Flaux QC sitting as a Deputy High Court Judge. In particular, I was referred to the passage in his judgment at paras.33-35. From that decision I derive two propositions. The first is that an obligation to use "best endeavours" is more onerous than an obligation to use "reasonable endeavours". Secondly, that an obligation to use "all reasonable endeavours" should be equated with the more onerous obligation to use "best endeavours".
38. Against that legal background, I turn to the claim for injunctive relief in respect of vibration. For the purposes of this interim application, and on the basis of the limited and, in some areas, conflicting evidence which is presently before me, I find the following: First, that the varying vibration levels agreed in the standstill agreement, with periods of noisy, intermediate and quiet works, strike an appropriate balance between the competing interests of the parties. I am satisfied that they afford considerable leeway for the defendants because the levels are not exceeded if excessive vibration lasts less than six minutes in any hour. I am satisfied that those levels, and the standstill agreement itself, worked well from about 8th November through to 29th November. I am satisfied from the evidence that the levels are correctly set at a level at which, if exceeded, a prima facie case of nuisance has been made out, subject to the defence of having taken all proper and reasonable care to avoid the levels being exceeded. Secondly, I am satisfied that those levels have not unduly inhibited the demolition of 38 Bishopsgate, provided the defendants take all proper and reasonable steps to ensure that those levels are not exceeded. From about 8th November to 29th November the defendants were able to, and did, adhere to the standstill agreement and were, notwithstanding that, able to carry out demolition works.
39. I accept Mr. Fancourt's submission that there is at least sufficient evidence to support the claimants' case that the activities carried on after 29th November were not materially different in kind from those that had been carried on before then. In that regard, I was referred to the evidence of Mr. Long, in his second witness statement, at para. 13, which, in referring to the events of Friday, 30th November, begins by saying:

"On this day we were carrying out the same work which we had been doing during the period between 8th and 29th November 2007".

I am therefore satisfied that it is perfectly possible to carry out work of demolition to the north building adjoining the Hiscox premises if all proper and reasonable care is taken. Mr. Fancourt invites me to draw the clear inference (which I do) that work of demolition can be done properly and carefully without infringing the vibration levels set out in the standstill agreement, provided appropriate care is used in the undertaking of those demolition works.

40. Thirdly, I am satisfied that on each of 30th November and 3rd, 4th and 5th December, there was a correlation between complaints of inconvenience and discomfort through vibration, and the vibration levels being exceeded. I accept that, as Mr. Darling demonstrated, the correlation is neither perfect nor complete. I accept that, on occasions, inconvenience and discomfort may have been experienced by occupiers of the Hiscox building without vibration levels being exceeded; but it does not follow that the levels are inappropriate for that reason, merely that they may be too generous to the defendants. I am satisfied that the claimants have demonstrated a sufficiently strong case of nuisance if the vibration levels are exceeded, unless the defendants have taken all proper and reasonable steps to avoid such excess. On the evidence, I am not satisfied that the defendants have demonstrated all proper and reasonable steps were taken to avoid the vibration levels being exceeded on 30th November and 3rd to 5th December.
41. Mr. Darling submits that the excesses were short or were minor and would not have been in excess of the vibration levels if they had occurred at different times of the working day. I reject that submission as a sufficient answer to the claim in nuisance. I accept Mr. Fancourt's submission that the reason for the different levels at different times of the working day is so that people working at the Hiscox premises have the benefit of quiet hours and are in a position to plan their business accordingly. I accept that a significant excess from the agreed levels at any one time of the day may constitute a nuisance, even though this excess would not amount to a nuisance if it had occurred at a different time of the working day. To say that these are minor excesses, as Mr. Darling submitted, gives no credit to the parties' experts' acceptance of the varying limits. I am satisfied that the limits are sufficiently generous to the defendants. Significant effects may be felt without the vibration limits being exceeded. I am satisfied that if the vibration limits are exceeded, such excess should not be regarded as trivial and something that can be ignored.
42. Fourthly, I am satisfied on the evidence that the vibration levels are capable of being monitored appropriately. In his second witness statement, at para.37, Mr. Trevor-Jones says that the defendants have plenty of experience of what they can and cannot do on site without causing vibration that exceeds the agreed levels. The monitoring records will always be post facto, in that the form of averaging can, by definition, only be generated after the event. The statistical oddities of the averaging method can be accommodated, as indeed they have been so far. Mr. Trevor-Jones then goes on to make the point that in his first witness statement, he had pointed out that the time lag characteristics of the rolling hourly statistical level could lead to apparent excesses of measured over limit values for up to an hour after cessation of the activity that generated the vibration. However, that had not been a problem in interpreting the results to date; and he could see no reason why it should be a problem in the future. Therefore he did not share Mr. Waters's concern about the removal of the statistical anomaly.
43. In his first witness statement Mr. Waters, at para.57, referred to the misleading aspect of data bleeding from one period to the next. He made the point that, if a court was to decide upon a noise or vibration taking place from, say, 8 to 10, it could not have presented to it data that included the period 10 to 12. But he acknowledged that it was possible to remove this statistical anomaly, whilst recognising that it added a further complication. He explained how the statistical anomaly could be removed at paras.37-40 of the same witness statement. He there referred to an incident on 30th November where, although from the LV10 graph it had appeared that there was an activation of a trigger level in the afternoon quiet period between 13:59 and 14:35, the vibration PPV record showed that vibration levels above 0.5mm per second were not present during this period. He referred to that as an example of where the PPV graphs were helpful due to the fact that the LV10 method of assessment of vibration was calculated over an average of an hour. The level of vibration recorded at any particular time was an average of the vibration that had been recorded for the previous hour. He then went on to explain what he meant by that. He then referred to the acknowledgement by both Mr. Trevor-Jones and himself that that overlap was a peculiarity of the method of calculation, and should not be misinterpreted as an infringement of the vibration limit. He went on to say that in order to determine the level of vibration at any given minute, one could refer to the PPV data, which assessed the level of vibration over a single minute period rather than as an average over the preceding hour. The PPV graph could therefore serve as a check that activity was in fact taking place or not. His conclusion was that, although there was activation of the vibration trigger method during the lunchtime period on 30th November 2007, there was no activation during the afternoon quiet or noisy periods. That seems to me to be a concrete example of the removal of the statistical anomaly.
44. I am satisfied that neither of the parties' experts has any real difficulty in adjusting for this statistical time lag factor. I am satisfied also that there are no practical problems in policing any injunction by reference to the vibration levels in the standstill agreement. Mr. Darling submitted that it was wrong in principle for a respondent to an injunction not to know whether he was in breach of a court order until after the event. I accept Mr. Fancourt's submission in response that there is no real anomaly or difficulty in this regard. So far as the respondents are concerned, they know that they have to take all proper and reasonable steps to keep within the vibration limits by minimising vibrations within certain prescribed hours of the working day. So far as the court is concerned, if an alleged breach of any injunction is brought before it, the relevant print outs, both the LV10 and the PPV print outs, would be made available to the court. They will show, suitably interpreted by the parties' experts, whether there has been a breach. If the case of breach is not clearly established, then the court will have to decide, to the criminal standard of proof, whether such a breach has occurred. Any reasonable doubt in the matter would be resolved in favour of the respondent. As Mr. Fancourt submitted, if the position were otherwise, then the provisions of s.60, enforceable by criminal sanctions, would not have included reference to noise, including vibration, limits.
45. Mr. Darling submits that one cannot infer from the fact that the vibration level has been exceeded on its own that work has been carried out without proper and reasonable skill and care. He makes the point that we are not dealing with a laboratory but with a working building/demolition site. He submits that there is no necessary correlation or link between the absence of vibration and the exercise of proper and reasonable skill and care. He submits that the fact that all went well before 29th November tells one absolutely nothing. There is no evidence at all, he submits, of work not being carried out without reasonable skill and care, apart from what is a hotly disputed incident on the afternoon of 5th December, one which, as he points out, the injunction would not in any event have prevented because it did not result in any excess of the vibration limits. So far as the latter point is concerned, the claimants' case is that the limits were not exceeded simply because, as a result of the intervention of Viscount Dupplin, the work was discontinued.
46. I cannot accept these submissions from Mr. Darling. On the basis of the evidence before me, I am satisfied that, if the vibration limits are exceeded, then it is appropriate for the burden to pass from the claimants to the defendants to show that they took proper and reasonable steps to prevent such excess. If they do that, then there is no risk of committal. The risk of committal is something that was emphasised by Mr. Darling. He drew attention to an incident, not concerning vibration, on 20th December which he submitted was indicative of Allen & Overy's approach, although involving an alleged breach of the injunction as to access. It resulted in a direct personal threat to commit Mr. Affara to prison. The complaint eventually proved to be wholly unfounded; but the apology (if any) was distinctly ungracious. In that regard I was referred to correspondence at pp.9 and 106 of the application bundle. Mr. Darling submitted that the threat of committal was made at any hint of the slightest breach of the access injunction; that there was clearly a tendency on the part of the claimants to resort to entirely disproportionate and inappropriate threats; and that the grant of injunctive relief would inevitably serve to promote further threats on the part of the claimants to commit individuals engaged in the defendants' activities to prison.
47. I reject these submissions. I accept Mr. Fancourt's submission that, when dealing with noise or vibration levels, it is inevitable that a respondent will not know in advance whether there is a breach or not; but that is not an objection in principle, just as it is not an objection to the inclusion of noise and vibration limits within a notice served under s.60 of the Control of Pollution Act 1974. I accept Mr. Fancourt's submission that the proviso to be inserted into the injunction provides adequate protection to the defendants. I am satisfied that, if there is a proviso in the terms of the language adopted by Sir Wilfred Greene in the Andreae v Selfridge case, providing that it shall not be a breach of the order for the relevant vibration limit to be exceeded during any period if the defendants shall prove that they have taken all proper and reasonable steps to prevent such an excess occurring, that would be sufficient protection for the defendants. Mr. Darling pointed to the problem of background noise which may affect vibration levels. I accept Mr. Fancourt's submission that the problem of background noise is the claimants' problem rather than the defendants', because the claimants must prove that it was the defendants' works which caused the vibration limit to be exceeded. That is how the injunction is structured.
48. Fifthly, I am satisfied that the absence of any series incidents after 5th December has been due to the cessation of all demolition works on the north building, at least during business hours on working days. I am satisfied therefore that one of the considerations that led the Chancellor to refuse injunctive relief in terms of vibration levels is not in fact a relevant consideration.
49. Sixthly, I am not satisfied that the involvement of the City gives the claimants protection which corresponds to that to which they are entitled under the law of private nuisance. I have already referred to the e-mail of 10th January. The existing s.60 notice which has been served by the City makes it clear, in para.6, that permissible noise levels, and thus vibration levels, are not specified. I accept Mr. Fancourt's submission that the City are carrying out their statutory functions and not participating in any procedure under the standstill agreement; thus I do not consider that the City provides adequate protection to the claimants. After all, the City has to consider many other considerations apart from the position of the claimants.
50. Seventhly, I entertain a real concern that the prima facie nuisance resulting from the exceeding of the vibration levels will be repeated if the claimants are not protected by the grant of interim injunctive relief. The case does not fall within the Shelfer exception to the grant of injunctive relief. In my judgment, it is not just in the circumstances of the present case to confine the claimants to their remedy in damages. I accept Mr. Darling's submission that there may be some difficulties in assessing and quantifying the damages that may be suffered by the defendants if interim injunctive relief is to be granted. In the course of his submissions, Mr. Darling submitted that the principal losses that would be experienced by the defendants would be such as would flow from the delay in completion of the project due to the delay and disruption of demolition work. It would be difficult to assess how long the slowing down of the demolition works was, what its affect on the completion of the project would be, and what the monetary consequences would be. He pointed to the fact that it might extend to differences in the rents obtained from occupiers of the developed building, and the consequential impact upon capital values on future letting and sale of the building. However, I am satisfied that the difficulties of assessing the amount of potential damage to the defendants are less acute than they would be in seeking to assess the damages that would be suffered by the claimants if interim injunctive relief was refused. Mr. Fancourt has drawn my attention to the second and third of the undertakings to be proffered by the claimants. They are to allow Colin Waters and/or another identified acoustics consultant engaged by the defendants, at any reasonable time on one hour's prior notice, to access the equipment in 1 Great St. Helens used to monitor the vibration caused by the defendants' works in order to inspect it, and to provide a record of each working day's peak vibration readings from the equipment to Mr. Waters by an agreed means by 12 noon on the following working day; and to notify the defendants' solicitors forthwith in the event that the claimants form the view that an excess over a relevant vibration limit has occurred. In my judgment, that provides sufficient protection to the defendants.
51. Throughout, the defendants indicated that they were prepared to agree to an extension of the standstill agreement and to comply with its terms. At the end of his submissions, I enquired of Mr. Darling as to the form of the undertakings that were to be proffered by the defendants. At the end of Mr. Fancourt's reply, Mr. Darling addressed me on that issue, having taken instructions. He indicated to me that the defendants recognised that an undertaking to enter into a new agreement in the terms of the standstill agreement would not be sufficient; and that the appropriate course would be to proffer undertakings, not only to enter into a new standstill agreement, but also to undertake to the court to comply with paras.7.2, 7.3 and clause 12 of the provisions of the existing standstill agreement; and to agree also to the inclusion of a further term regarding access in the terms set out in Davies Arnold Cooper's first letter to Allen & Overy of 23rd January 2008. Mr. Darling indicated that those were undertakings that his clients were prepared to offer to the court.
52. This morning, I received a letter from Mr. Darling, which was clearly written yesterday and which was copied to Mr. Fancourt. Mr. Darling indicated in that letter that he was concerned that there had been a misunderstanding on the defendants' side as to the scope of the undertakings that the respondents were prepared to offer. In the rapid process of the taking of instructions after the court's question as to the scope of the undertaking, the distinction between, on the one hand, an undertaking to the court to enter into a further standstill agreement and to be bound contractually by its terms, and, on the other, an undertaking to the court to comply with its terms, was lost down the chain giving instructions to counsel. Mr. Darling apologises on behalf of the respondents' team for that misunderstanding. He thought it important to clarify the issue immediately, and to indicate the precise undertaking that was offered. The position was that the respondents were willing to give the following undertaking to the court:

"Forthwith to enter into a contract on the terms which represent an extension of the current standstill agreement with paragraph 7.4 replaced by the draft attached to the letter".

Mr. Darling goes on to explain the reasons why the undertaking is in that form, and does not go as far as an undertaking to comply with some or all of the terms of the standstill agreement. He explains that there may well be debate about exactly how such a wider undertaking would operate; but there would at least be the question, identified by the court, of whether the distinction between the injunctions sought and the undertaking offered was simply a matter of the burden of proof. That was said to be in no sense the intention of those giving instructions. Furthermore, the undertaking would have included obligations in relation to noise levels, which were no part of the injunction sought. As to that, I am satisfied that the undertaking could have been suitably modified so as to include reference to vibration levels only. Mr. Darling's letter continues that the respondents' position is that the necessary conditions for the injunction to be granted were not made out, and that it would be inappropriate in all the circumstances identified in argument for performance to be policed by injunctive relief or equivalent undertakings. Specifically, the concern is that the claimants would immediately commence contempt proceedings against Mr. Affara personally if the trigger levels were not achieved, on the basis of the claimants' submission that the excess itself showed breach of the obligation in clause 7.2 of the standstill agreement to use reasonable endeavours. He indicated, in the event unnecessarily, that if any further elaboration of those points was required, Mr. Stansfield would be in a position to offer it today in the absence of Mr. Darling, who is in court in Manchester.

53. Had the undertaking which was offered yesterday afternoon continued to be available, I might have been prepared to accept it as an alternative to the grant of injunctive relief in relation to vibration as giving sufficient protection to the claimants. Mr. Fancourt had emphasised that the standstill agreement had worked, and had worked well, from about 8th November to 29th November. In my judgment, if that standstill agreement had been fortified by the giving of undertakings to the court, I might well have concluded that it afforded adequate protection to the claimants. To the objection, which might have been advanced by Mr. Fancourt, that clause 7.2 does not reflect what I have held to be the law as to nuisance in the context of construction works, my response might well have been that, in practice, the difference in the burden of proof would have made little real difference. In practice, if vibration levels were exceeded, then I would have expected the claimants - and indeed they are required by their undertaking - to alert the defendants to this. If a satisfactory explanation, consistent with the taking of proper and reasonable steps to avoid that access, was then forthcoming, I have little doubt that the claimants would not have launched into an application to commit, with its attendant risks and legal costs. However, the undertaking presently on offer is simply to enter into a contract on terms which represent an extension of the current standstill agreement, with the modification to para.7.4. I do not consider that to be sufficient protection for the claimants, since the existence of the standstill agreement, with its purely contractual remedies, has not operated to prevent the vibration levels being exceeded on 30th November and 3rd - 5th December. As Mr. Fancourt submitted, the only reason this application is being made is because the defendants failed to comply with the standstill agreement in relation to vibration levels, and, he also submitted, in relation to access. It has thus, during that period, proved ineffective as protection to the claimants against such excessive vibration levels.
54. I have to ask myself: what would be the impact on the claimants if the injunction is refused; and to compare that with the impact on the defendants if the injunction is granted. I am satisfied that the consequences of refusing an injunction would be that the claimants would be left with no sufficient adequate protection against the continuation of nuisance by vibration. The consequences of such further nuisance would be potentially severe for the next four to five months. By contrast, if an injunction is granted, the defendants will have to take proper and reasonable care and trouble to carry out the demolition works in the way that they did in the period from about 9th to 29th November. It may cause some delay in the demolition contract. One does not actually know because the terms of the demolition contract are not in evidence. It is possible that it may result in a claim against the defendants by its demolition contractors for further money. So far as the loss of rental income and capital value are concerned, that is, as Mr. Fancourt submitted, very far down the line. The demolition of the north block is due to complete in about May of this year, but the demolition works as a whole are scheduled to continue until about October. In any event, the demolition is only the first stage in the construction of what I understand is proposed to be the largest tower office building in Europe. The completion of that construction, particularly in the present financial climate, may well be some years ahead. I am satisfied that any practical difficulties in working out any compensation to the defendants, if an injunction is granted, will be far less than the practical difficulty of quantifying the adverse affect on the claimants' business and its employees if adequate protection, by way of injunction, is not granted.
55. In those circumstances, I am satisfied that, for those reasons, the balance of convenience is in favour of the grant of injunctive relief; and I am satisfied that the claimants have a sufficiently strong case to justify that.
56. For those reasons, therefore, I propose to make an injunction; but the proviso will not be in the terms for which Mr. Fancourt contended. His proviso was that it should not be a breach of this order for the relevant vibration limit to be exceeded during any one hour period if the defendants shall prove that they have used all reasonable endeavours to prevent such an excess occurring. As I have already said, that obligation - to use "all reasonable endeavours" - is more onerous than an obligation simply to use "reasonable endeavours", and is approaching an obligation to use "best endeavours". That does not seem to me to accord with the law of nuisance as expounded by Sir Wilfred Greene. In my judgment, the appropriate course is to couch the proviso in the terms used by Sir Wilfred Greene in the Andreae v Selfridge case and to use the phrase "if the defendants shall prove that they have used all proper and reasonable steps to prevent such an excess occurring".
57. The other respects in which injunctive relief is sought by the claimants received much less focus in the course of the written and oral submissions. So far as access is concerned, Mr. Fancourt addressed the matter at para.60 of his written skeleton argument; and Mr. Darling responded at paras.77-85. Mr. Darling contended, on behalf of the respondents, that they had in place appropriate systems to ensure that access was given, whilst maintaining safety in the area. Those systems were said to be robust and to work well. He submitted that no injunction was required to be continued in order for continued access to be provided. In his oral submissions, Mr. Darling submitted that the relations between the parties were of such a low order that the grant of an injunction relating to access would fuel rather than prevent problems. It would ensure threats of committal in relation to minor and trivial events where complaints were later found to be unjustified and thus withdrawn. He submitted that the term of the new standstill agreement proposed in Davies Arnold Cooper's first letter of 23rd January offered a pragmatic and sensible solution.
58. There is no dispute between the parties as to the claimants' entitlement to access. I am satisfied on the evidence that, before the grant of the injunction contained in the Chancellor's order of 19th December, there were serious difficulties being experienced by Hiscox's workers and visitors to its premises in obtaining access thereto. I am satisfied that it was only in response to the injunction that those problems were adequately addressed. I am satisfied that, subject admittedly to one or two minor hiccoughs, the injunction has been shown to be effective to resolve the problems over access. In those circumstances, it seems to me that the appropriate course is to continue the injunction that seems to me to be working tolerably well.
59. So far as the ingress of water is concerned, Mr. Fancourt addressed that at para.61 of his written skeleton argument. He did so shortly. He said that the respondents have no arguable case that a nuisance was not being caused; there was no satisfactory evidence that the threat of recurrence had been removed, and therefore, the threat remained, and thus injunction should be granted in terms of para. 1(e) of the draft minutes of order, which only required the respondents to ensure that all proper steps were taken to avoid water ingress.
60. Mr. Darling addressed the position at paras.86-93 of his written skeleton submissions. He submitted that if damage could be shown to have been caused by the demolition contractors' activities, the defendants would be responsible for the necessary repairs, the cost of which could be quantified; and thus damages would be an adequate remedy for Hiscox. He submitted that, by contrast, damages would not be an adequate remedy for the defendants if diamond drilling and sawing could not be used; and other methods were too noisy or would cause the vibration limits to be breached. The defendants might be left with no reasonable or practical means of demolishing the buildings on the site. Thus, he submitted, there was no basis for an injunction, Hiscox being adequately compensated by any breach in damages. In his oral submissions, Mr. Darling contended that the threat was a minor one and not within the territory for injunctive relief. He acknowledged that, in practical terms, it was a relatively minor matter. He submitted that there was no material to suggest that the defendants threatened to repeat the ingress of water unless restrained by injunction, and thus there was no danger against which the claimants needed protection. The problem had been, and continued to be, addressed, and it was not appropriate for the court to intervene to regulate the relationship between the parties. There had been testing on 15th January and that had revealed no problem, and works on the north building had resumed on 16th January. That was only eight days ago, but no problems had occurred since then. He submitted that an injunction, even in the limited terms sought, would, because of the hostile relationship between the parties, be a recipe for further litigation. He submitted that the parties should be encouraged to cooperate and not to litigate.
61. In his reply, Mr. Fancourt submitted that if water penetrated a building it could cause real harm. The demolition works in question were proceeding only centimetres away from the wall of the Hiscox building, and there was therefore a risk of real harm by water penetration if reasonable and proper steps were not taken to prevent that. He referred me to para.9 of Mr. Jackson's witness statement.
62. In my judgment, there has been demonstrated to me a risk of ingress of water to the claimants' building at 1 Great St. Helens. All that is being sought is that the defendants take all reasonable and necessary precautions to prevent water, or other liquids used in connection with works of demolition on the site, from entering or spraying onto the wall of the claimants' building. In my judgment, there can be no objection to requiring the defendants to do that. According to Mr. Darling's submission, work resumed on 16th January, and no problem has been experienced since then. There would therefore appear to be no difficulty in the defendants complying with that. I am satisfied that there is a real risk of harm if they do not; and therefore I consider it to be appropriate for an injunction to issue in relation to the potential ingress of water.
63. For substantially those reasons, it seems to me that the claimants are successful in their claim for interim injunctive relief. Mr. Fancourt will need to re-draft his order to give effect to this judgment, and also to record within it the full extent of the evidence that was considered by the court. That is a matter that is of particular concern to Mr. Darling because he wishes to ensure that an accurate record of the evidence before the court is contained within the order, with a view to any possible future application to discharge or vary on account of a material change of circumstance.